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determining privacy interest:
two prong analysis to determine privacy interests--
1. subjective
A. What has the individual done to ensure privacy?
2. objective
A. Is society prepared to recognize the expectation as reasonable or legitimate?
more info:
Gov bugged public telephone booth. Violated privacy that defendant relied on.
4th A protects people, not places. |
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| open fields: open fields do not provide the setting for those intimate activities that the 4th A is meant to protect. |
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Curtilage: barn located 60 yards from home and not within fence was not withing curtilage of home.
(also, police could stand in open field and see in barn, use of flashlight didn't matter)
**4 factor test to determine curtilage from open field:
1. proximity to the home
2. whether the area is included within enclosures surrounding the house
3. the nature of the use to which the area is put
4. the steps taken to protect the area from observation. |
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| Trash/abandoned property: no expectation of privacy in trash exposed to the public/third parties. |
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exposure to narcotics dog is not a search for 4th A purposes. (airline passenger baggage)
(see also IL v Caballes: so long as traffic stop wasn't extended beyond time necessary to issue ticket) |
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| officer's physical manipulation of bag on bus violated 4th A. |
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| pen register from telephone company does not constitute a search. (no privacy interest in the numbers you call--just the conversations) |
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electronic surveillance beeper (GPS?) in public: no expectation of privacy. Police could get the same info from visual surveillance from public places.
(gov installed beeper and tracked containers being transported)(also not seizure)
but see Karo regarding beeper in home |
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| electronic surveillance beeper inside home: 4th A protects against warrantless monitoring by beepers in private home. (search, but not seizure). |
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| warrantless aerial observation by fixed wing aircraft of fenced in backyard within curtilage was not unreasonable |
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officer's observation with naked eye of greenhouse in backyard from helicopter 400 feet above (public vantage point) did not constitute a search.
(the question becomes is it public space?) |
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| aerial photography was not a search for 4th A purposes. |
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| thermal imaging/sense enhancing technology to gather info of interior of home that could not otherwise be obtained without physical intrusion constitutes a search. |
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Curtilage: the land immediately surrounding and associated with the home...to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life.
4A protections do not apply absent a physical intrusion by police. |
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no expectation of privacy in information voluntarily turned over to third parties.
no expectation of privacy in financial records he voluntarily conveys to bank employees. No search if bank hands over records to government. |
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Hoffa: no search--relying on misplaced confidence in friend invoked assumption of the risk (pre-Katz)
**White (post-katz): a person does not have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not reveal the conversation to the police. if a false friend is allowed to report what he heard, then in the name of accuracy there can be no greater objection to a wire recording. |
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| a person does not have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not reveal the conversation to the police. |
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Place: sniff of airline passenger's baggage no search because (1) nonintrusive and (2)reveals extremely limited information
Caballes: does not implicate 4A as long as it does not prolong stop. |
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in field NIK test merely disclose whether substance is cocaine does not compromise any legitimate interest in privacy.
(but see Skinner: blood and urine tests for evidence of drug use is a search. they don't reveal if something is contraband, but whether it contains evidence of the use of contraband). |
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| 4A goes to property interests as well as privacy (seized mobile home but did not invade privacy) |
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brown v. texas: seizure of property invade's an individual's possessory interest in the property.
Jacobson: defines seizure of property as meaningful interference with possessory interest in property. When an officer exercises control of property by destroying it, or by removing it from D's possession.
no seizure where cop merely picks up object to look at it or moves it a small distance (i.e. Brown--cop moved balloon to better see its contents; Class--cop moved paper on dash to see vin; hicks--cop moved stereo to read serial number)(although may be a search). |
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inadvertance: where arresting officer comes within plain view of evidence, officer may seize it so long as plain view was obtained in course of an appropriately limited search of the arrestee.
(if an officer anticipates discovery of item but fails to request a warrant to seize it, or fails to mention it in warrant application for other items, it basically becomes an exploratory search, not ok).
(but see horton: 4A does not prohibit warrantless seizure of evidence in plain view, even if discovery was not inadvertent). |
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inadvertance: 4A does not prohibit warrantless seizure of evidence in plain view, even if discovery was not inadvertent).
Facts: police had search warrant to look for proceeds from robbery. officers intended to find the weapon, which they did when they were found in plain view.
inadvertancy is not a requirement of the plain view doctrine. it adds no more privacy protection than particularity requirement.
once items in warrant are seized, search must stop. |
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Seizure of person occurs when police intentionally restrain the individual's liberty in such a manner that a reasonable person would believe that he is not free to leave.
(chesternut: reasonable person presupposes innocent person). |
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Officers at the workplace/seizure by questioning--in determining whether a reasonable person would believe that he is free to leave, the subjective impressions of the person are irrelevant.
Questioning is not a seizure since the person has the right to walk away.
(INS agents moving through factory to inquire citizenship status w/ agents stationed at each exit did not amount to 4A seizure--(2) questioning of individual workers did not amount to a seizure or detention). |
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| Uniformed officers on bus/seizure by questioning--seizure does not occur simply because officer approaches and asks questions, s long as reasonable person would feel free to disregard and go about his business. (such encounters are consensual, unless police adds to the pressure by engaging in conduct significantly beyond that accepted in social intercourse) |
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Use of deadly force is a seizure. (thus unnecessary deadly force is an unreasonable seizure).
factors supporting seizure:
1. officers display weapon
2. officers encircle.
3. officers roughly touch
4. officers tone indicates that compliance with his request might be compelled. |
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| plainclothes officer on bus: (1) no seizure when they boarded bus and began asking questions; (2)passenger's consent to search was voluntary even though not informed of right to refuse |
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seizure by pursuit: no seizure occurred when police observed D, upon seeing police, start to run, and officers pursued and recovered pills D discarded while running.
reasonable person presupposes innocent person. |
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seizure by pursuit: even if pursuit was show of authority, because D did not comply, he was not seized until he was tackled, thus cocaine abandoned while running was not fruit of seizure.
more info:
Scalia--the word seizure readily bears the meaning of a laying on of hands, or the application of physical force to restrain movement, even when it is ultimately unsuccessful. It does not remotely apply to the prospect of a cop yelling "Stop!"
(dissent says this means a D who simply runs has no 4A protection, but a person who is touched, but then escapes and tosses something has 4A protection). |
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seizure by ramming: ramming the officer's car into the suspect's car constitutes a seizure.
(ramming although dangerous and possibly deadly, was not unreasonable and therefore did not violate 4A right against unreasonable seizure). |
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| moving: D was seized when he was arrested and taken to police station |
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moving: D was seized when taken to small police room at airport, and retained his ticket and DL and did not indicate he was free to leave.
more info:
D was a nervous young man paying cash for airline ticket under an assumed name, who carried heavy bags. (could be stopped temporarily detained while police attempted to investigate, however, police exceeded limits when D was moved to police room). |
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traffic stops are seizures from the moment the car comes to a halt (this includes passenger is seized as well).
(passenger therefore has standing to challenge constitutionality of stop. Any reasonable passenger would understand that no one in car was free to leave without police permission).
(although seizure, not an arrest--Hensley). |
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| ??? (does it matter)--excessive force standard: excessive force, deadly or not, in course of arrest, investigatory stop, or other seizure of a person, is properly analyzed under 4A objective reasonableness standard, rather than under substantive due process. |
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| misdemeanor offenses: standard of probable cause applies to all arrests. driver's 4A right against unreasonable seizure was not violated when she was arrested for failing to wear her seat belt. (officer observed violation) |
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| inadvertent discovery rule |
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| in executing a search warrant, officers may not invoke plain view to seize items not listed during warrant application unless the items were inadvertently left off. |
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